Karam v The King
[2024] VSCA 164
•19 July 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0062 |
| JOE KARAM | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | T FORREST JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 19 July 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 164 |
| JUDGMENT APPEALED FROM: | DPP v Karam [2024] VCC 127 (Judge Mullaly) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Sentence – Theft, conduct endangering persons and causing injury intentionally – Applicant drove stolen vehicle at dark skinned victims while suffering drug induced psychosis – Whether sentence manifestly excessive – Whether sentencing judge erred by failing to adequately reduce maximum total sentence indicated at sentence indication hearing despite new material advanced at the plea – Whether open to sentencing judge to find that offending motivated by hatred or prejudice toward dark skinned people – Whether sentencing judge failed to mitigate sentence by reference to remorse – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Ms H Anderson | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Valos Black & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA:
On 5 October 2023 the applicant pleaded guilty to one charge of theft, two charges of conduct endangering persons and one charge of causing injury intentionally on indictment M12470833A. The applicant also pleaded guilty on 19 February 2024 to a related summary offence of failing to render assistance after a motor vehicle accident and a charge of possession of a drug of dependence on indictment M12470833B. On 19 February 2024 the applicant was sentenced for this offending as set out in the table below.[1]
[1]DPP v Karam [2024] VCC 127 (‘Sentencing reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 1 month |
| 2 | Conduct endangering persons | 5 years’ imprisonment | 1 year and 8 months’ imprisonment | 8 months |
| 3 | Conduct endangering persons | 5 years’ imprisonment | 2 years’ imprisonment | 8 months |
| 4 | Causing injury intentionally | 10 years’ imprisonment | 4 years and 8 months’ imprisonment | Base |
| Related Summary Offence | ||||
| 5 | Failing to render assistance after a motor vehicle accident | 8 months’ imprisonment | 4 months’ imprisonment | 2 months |
| Indictment M12470833B | ||||
| 1 | Possession of a drug of dependence | 5 years’ imprisonment | 2 months’ imprisonment | N/A |
| Total Effective Sentence: | 6 years and 3 months’ imprisonment | |||
| Non-Parole Period: | 4 years and 9 months | |||
| Pre-sentence Detention Declared: | Nil | |||
| Section 6AAA Statement: | 8 years and 9 months’ imprisonment with a non-parole period of 6 years and 6 months | |||
| Other Relevant Orders: Driver licence cancellation and disqualification. Forfeiture order. | ||||
The applicant seeks leave to appeal against his sentence on four grounds, namely:
(1)The individual sentences imposed on charges 2, 3 and 4 on Indictment M12470833A were each manifestly excessive.
(2)The sentencing judge erred by failing to adequately reduce the maximum total effective sentence indicated at the sentence indication hearing despite the changes in mitigating factors accepted at the plea hearing, which were not present at the time of the sentencing indication hearing.
(3)The sentencing judge erred in giving too much weight to the offending being motivated by hatred or prejudice against a group of people with common characteristics without a formal finding of this as an aggravating factor.
(4)The sentencing judge erred by not considering and not mitigating the applicant’s sentence by reference to remorse.
For the reasons that follow, leave to appeal should be refused.
Circumstances of the offending
On 29 November 2021 the applicant attended at an address in the eastern suburbs of Melbourne, where he had earlier arranged to meet a woman who had advertised her car for sale online. The applicant agreed to purchase the car and make payments for the vehicle totalling $52,000.
The applicant drove the car away. On 30 November, 1 December and 2 December 2021, the applicant sent the woman screen shots of purported bank transactions that showed he had paid $52,000 into her bank account. However, the woman never received any money in her account and was advised by the bank that the payment had been cancelled. Subsequent investigation revealed that the applicant’s bank accounts had a collective balance of $4.45 at the material times, meaning that he never in fact had sufficient funds to cover the purchase price of the vehicle (Charge 1).
On 30 November 2021 the applicant was staying in a hotel in the CBD and using drugs. He took GHB for the first time. At 8.28 am the applicant called 000 and falsely claimed that ‘there’s a lot of black cunts around the area…threatening people’ and that he had been accosted by a man of colour who had pointed a gun at him. When police arrived at the hotel, the applicant denied making the 000 call.
After he had finished speaking with police, the applicant then got into the car he had stolen the day prior. He headed east on Lonsdale Street. The applicant saw a man of African appearance – Mr Ampofo – walking with a work colleague – Mr McLeod – and began racially abusing Mr Ampofo from his car, shouting racial abuse to the effect of ‘get out of the country you black nigger’. The applicant then pointed the vehicle at the two men and drove directly towards them, mounting the curb and coming within 2-5 metres of them (Charges 2 and 3). The men were able to avoid being hit by taking refuge behind a pillar.
The applicant continued driving east along Lonsdale Street and Albert Street to Hoddle Street, before driving north and coming to a stop at the intersection of Hoddle Street and Easey Street. At the time a COVID-19 testing facility was operating at that location, with up to 30 people waiting in line for COVID tests. The applicant stopped outside the testing facility and began revving the engine of the vehicle.
He then turned the vehicle to face a security guard of Indian appearance – Mr Singh – who was working at the testing facility at the time. The applicant drove directly at Mr Singh, mounting the footpath and striking him with the front of the car. The car impacted Mr Singh’s left leg and he was ultimately thrown over the bonnet, striking the windscreen and causing it to smash.
Mr Singh remained on the bonnet for 10 metres before he was thrown clear of the car, landing on concrete. He sustained significant injuries, including a spinal fracture, ligament damage to his knee, multiple cuts and bruises to his legs, face and head. He was also concussed as a result of the incident and suffers ongoing difficulty with dizziness and blackouts, and experiences difficulty concentrating (Charge 4).
The applicant was arrested at approximately 10 am the same day. Police located small quantities of a number of illicit substances (7 grams of 1-4-butanediol, 1.4 grams of methylamphetamine, 0.4 grams of heroin and one diazepam tablet) on both the applicant personally and in the car he had stolen (Charge 1, Indictment M12470833B).
Procedural history
The applicant was remanded into custody on 30 November 2021 and, while on remand, has been sentenced to terms of imprisonment for two separate instances of offending. On 17 March 2022 he was sentenced to a term of imprisonment of 2 years with a non-parole period of 12 months for armed robbery. On 27 February 2023 he was sentenced to a term of imprisonment of 1 year and 10 months with a non-parole period of 12 months for armed robbery.
The applicant ran a contested committal hearing in relation to the charges the subject of this application for leave to appeal against sentence on the basis that he was not the driver of the stolen car. The applicant applied for and received a sentence indication[2] on 28 September 2023 in relation to these charges.[3] The judge indicated that if the applicant pleaded guilty to the charges, the Court would be likely to impose on the accused a specified maximum total effective sentence of 6 years and 8 months’ imprisonment with a non-parole period of 5 years (with no pre-sentence detention declared in light of the 2 previous sentences of imprisonment the applicant was undergoing).
[2]Pursuant to s 208 of the Criminal Procedure Act 2009.
[3]There was also one charge of deal with proceeds of crime that was taken into account for the purposes of the sentence indication, but this was withdrawn by the prosecution prior to the plea hearing.
The applicant’s personal circumstances
The applicant was 34 years of age at the time of sentence and aged 32 years at the time of the offending. He was born in Lebanon and migrated to Australia around the year 2000. The applicant’s father died from suicide when the applicant was a young child.
The applicant experienced difficulties with his schooling due to language problems. Upon leaving school, he has largely been self-employed, working in the painting and logistics industries.
In 2010 the applicant married. He moved to Victoria with his wife in 2012. The applicant’s marriage came to an end in 2015, following which the applicant descended into drug addiction, homelessness and crime. As a result of the applicant’s drug use, he stopped work in 2016 and began relying on Centrelink benefits. In 2017 the applicant temporarily relocated to Lebanon but shortly thereafter moved back to Australia.
The applicant has endured severe mental health difficulties since 2015. Following the end of the applicant’s marriage, he was admitted to hospital and diagnosed with drug-induced psychosis. In 2016 he was admitted to the Sunshine Hospital following a suicide attempt in 2016. He also had a three month psychiatric admission during his trip to Lebanon in 2017. Upon the applicant’s return, he spent three weeks in Epping Hospital as a consequence of his depression and drug-induced psychosis. In 2019, police brought the applicant to hospital due to his psychiatric symptoms. In 2020 the applicant attended Odyssey House residential rehabilitation for three months.
In her report dated 12 December 2023, Dr Clare McInerney, forensic psychiatrist, found that there was a nexus between the applicant’s drug use and offending. She opined that both the applicant’s intoxication with various substances and his drug-induced psychosis played a role in contributing to his offending by rendering him with deficient judgment, marked disinhibition and a failure to consider the consequences of his actions. Dr McInerney was of the view that the applicant does not have schizophrenia, and that he will not require long-term anti-psychotic treatment so long as he can abstain from illicit drug taking.
Gina Cidoni, psychologist, assessed the applicant on 23 March 2021 via videoconference. In her report, Ms Cidoni found that the applicant had adjustment disorder, with depression and anxiety, which in her opinion would make imprisonment more burdensome for him.
Sentencing reasons
In his Sentencing reasons, the judge summarised the offending[4] and the personal circumstances of the applicant.[5]
[4]Sentencing reasons, [7]-[21].
[5]Sentencing reasons, [32]-[49].
The judge described the offending as ‘simply appalling’ and noted that the applicant had used a car as a weapon to target members of the community who were dark skinned.[6] In this regard, section 5(2)(daaa) of the Sentencing Act 1991 rendered the fact that the offences were motivated wholly or in part by hatred for or prejudice against a group of people with common characteristics with which the victims were associated an aggravating factor. The judge had ‘no doubt whatsoever’ that the applicant’s offending against the two victims of African and Indian appearance respectively was motivated wholly by the applicant’s hatred for, or prejudice against, people with dark skin.[7]
[6]Sentencing reasons, [21].
[7]Sentencing reasons, [26].
However, the judge considered that the report of Dr McInerney ‘moderate[d] the findings’ he had made with respect to s 5(2)(daaa) of the Sentencing Act 1991, because Dr McInerney found that the applicant had been in a drug-induced psychosis at the time of the offending. Although this was not an excuse for the applicant’s conduct, it did provide context to his racist motivations.[8]
[8]Sentencing reasons, [27]-[29].
On the basis of Dr McInerney’s report and consistently with the principles enunciated in R v Martin[9], the judge found that the applicant’s drug-induced psychosis did not lower his moral culpability. Although there was a sense in which the applicant’s moral culpability might be heightened on the basis that he knew the consequences of taking drugs (including becoming psychotic), the judge accepted that the fact that the applicant had taken the drug GHB for the first time meant that it was not appropriate to elevate his moral culpability.[10]
[9]R v Martin (2007) 20 VR 14; [2007] VSCA 291.
[10]Sentencing reasons, [50].
The judge ultimately found that given the seriousness of the applicant’s offending, significant weight was required to be given to the sentencing principles of denunciation, protection of the community and specific and general deterrence.[11] Given that the applicant had been in custody since 30 November 2021 and had been sentenced to two terms of imprisonment for armed robbery since that time, the judge, correctly, was also cognisant of the principle of totality in the sentencing exercise.[12]
[11]Sentencing reasons, [31].
[12]Sentencing reasons, [52].
The judge took into account the applicant’s lengthy criminal history from 2015 to 2020, but gave the applicant credit for having completed a range of vocational and drug addiction programs while in custody.[13] The applicant’s prospects for rehabilitation were assessed to be entirely dependent on his commitment to rid himself of drugs.[14] Finally, the judge noted that the applicant’s guilty plea after the sentence indication was a valuable plea and that he was entitled to an augmented Worboyes[15] discount.[16]
[13]Sentencing reasons, [53]-[54].
[14]Sentencing reasons, [55].
[15]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
[16]Sentencing reasons, [56].
Ground 1 – Manifest excess
Applicant’s submissions
The applicant argues that the sentences imposed on the conduct endangering persons and causing injury intentionally charges were beyond the range of sentences reasonably open to the judge.
Firstly, the applicant contends that insufficient weight was given to the utilitarian value of the applicant’s guilty pleas, in circumstances where witnesses were saved the ordeal of giving evidence at a trial and the pleas were of increased value at a time when the courts were still afflicted by the adverse effects of the pandemic. Second, the applicant submits that totality loomed large in the sentencing exercise, particularly given that there was a temporal proximity between charges 2, 3 and 4 and the applicant was serving a sentence for another matter when he was sentenced for these offences. Finally, the applicant argues that he has demonstrated a high degree of rehabilitation during his time spent in custody.
Respondent’s submissions
The respondent contends that the sentences imposed on charges 2, 3 and 4 were well open to the judge. The offending constituting these charges was rightly characterised by the judge as grave and outrageous crimes.
The applicant targeted two of his victims because they had dark skin, and Mr Singh sustained significant injuries as a result of the offending. As a result, significant weight had to be given to denunciation, protection of the community, and general and specific deterrence. It was also relevant that the applicant had a significant criminal history. The judge was also mindful of totality, and had to order some portion of charges 2 and 3 be served cumulatively on charge 4, to reflect the fact that there were two victims of the offending.
Analysis
This court has observed on frequent occasions that a ground of appeal alleging manifest sentence excess is hard to establish. An applicant for leave must establish that the impugned sentence is wholly beyond the range of sentences reasonably available to the sentencing judge, in the exercise of his or her discretion.[17] Such a ground does not contend that there is an identifiable sentencing error, but does contend that the impugned sentence is sufficiently excessive as to bespeak underlying error.
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
It is convenient first to consider the base sentence of 4 years and 8 months for causing injury intentionally to the security guard Mr Singh. The sentence imposed represents 46.7 per cent of the maximum penalty. At a cursory glance this sounds at least stern for a first offender, however, I agree with the judge that the offending conduct was absolutely outrageous, motivated by drug-affected racial hatred visited upon an innocent man, just trying to do his job. The sentence imposed was a reflection of this underlying conduct, and in my view represented a fair balance between this and the factors in mitigation that were advanced on the applicant’s behalf.
The victim suffered, and apparently continued to suffer significant injuries, and the offending called for real weight to be given to denunciation, community protection, and deterrence (both general and specific). Further the judge made an express finding pursuant to s 5(2)(daaa) of the Sentencing Act 1991 that the offence against Mr Singh was racially motivated.[18] The judge was satisfied of this beyond reasonable doubt, although his Honour moderated the weight to be given to this aspect given the report of Dr McInerney. There is no error in this approach (which also applied to the offending against Mr Ampofo – charge 2).
[18]Sentencing reasons, [21], [24]-[29].
Whilst the applicant pleaded guilty and was entitled to a utilitarian benefit for this, the judge correctly observed that he had conducted a contested committal on the basis that he was not the driver. It is clear that the judge took into account the applicant’s guilty plea and its timing, including that it was made during the currency of the pandemic. It is also clear that the judge gave consideration to the applicant’s improved prospects of rehabilitation.
The applicant was not entitled to any allowance for pre-sentence detention, as he had been sentenced twice by the County Court for armed robbery, which offences occurred just before this offending where sentences were imposed before the sentence the subject of this application for leave to appeal. Nonetheless, it is clear from the Sentencing reasons that the judge was cognisant of the principle of totality and endeavoured to fashion a total effective sentence and non-parole period that appropriately reflected the totality of the offending (being both the charges the subject of this application for leave to appeal against sentence and the armed robberies for which the applicant had already been sentenced).[19]
[19]Sentencing reasons, [52].
I am unable to conclude that the applicant has demonstrated an arguable case that the sentence on charge 4 is manifestly excessive. The judge remarked about the overall offending:
On any analysis this offending was simply appalling. To use a car as a weapon on public streets, to target members of our community who were dark-skinned, is grave offending. Our community would be simply bewildered at your racism and hatred that came through or would reach this level and be expressed in such a dreadful and dangerous way.[20]
I agree with these remarks.
[20]Sentencing reasons, [21].
Insofar as the sentences imposed on charges 2 and 3 are concerned I have reached similar conclusions. The offending was grave, obviously imbued with drug-addicted racial hatred, and had the potential for catastrophic consequences. I have considered the factors relevant to mitigation in the consideration of charge 4 under this ground. The sentences imposed on charges 2 and 3 represent 33 per cent and 40 per cent of the maximum penalties respectively, and are comfortably within range for such outrageous conduct, notwithstanding the applicant’s pleas of guilty and custodial efforts towards rehabilitation. The cumulation ordered by the judge is, I consider, moderate.
This proposed ground of appeal has not been established.
Ground 2 – Failure to reduce the maximum total effective sentence indicated at the sentencing indication hearing
Applicant’s submissions
The applicant argues that the judge failed to give sufficient weight to new material that had come before the court in the period between the sentence indication hearing and the plea hearing. It was contended that there was an insufficient reduction to the maximum sentence that had been indicated at the sentence indication hearing, being 6 years and eight months’ imprisonment with a non-parole period of five years.
The new material included the applicant’s expression of remorse in letters tendered at the plea hearing, as well as the contents of Dr McInerney’s psychiatric report. In particular, Dr McInerney’s finding that the applicant was in a drug-induced psychosis at the time of the offending prompted counsel for the prosecution at the plea hearing to concede that the aggravating factor that the offending was motivated by racial prejudice or hatred could not be established beyond reasonable doubt. The reduction of three months’ imprisonment from the non-parole period stated at the sentencing indication hearing was illusory given the time between the sentencing indication hearing and the applicant being sentenced was almost five months. Likewise, the reduction of five months’ imprisonment from the head sentence indicated at the sentence indication hearing only resulted in a practical reduction of eight days given the five month delay between the indication and sentencing. Finally, there was an additional charge of deal with proceeds of crime before the judge at the sentence indication hearing that was not before the judge at the plea hearing.
Respondent’s submissions
The respondent contends that the only effect the sentence indication could have on the sentencing task was to constrain the sentencing judge from imposing a more severe sentence than the maximum total effective sentence indicated. It did not become a benchmark or starting point from which additional deductions were required to be made to reflect the new matters raised in mitigation at the plea hearing, as such an approach would involve two-stage sentencing and is inconsistent with the process of instinctive synthesis.
Analysis
This ground contends that a sentencing indication given by his Honour at an earlier hearing was inadequately reduced by additional mitigating factors that were raised at the subsequent plea hearing.
The sentencing indication was given under s 207 of the Criminal Procedure Act 2009. The only effect such an indication can have upon the sentence subsequently to be passed by the sentencing judge is found in s 209 of the Act – that is to constrain the sentencing judge from imposing a more severe sentence than the maximum total sentence indicated. The sentence indication is not an opening bid for future negotiation, nor is it a benchmark for additional deductions at the plea hearing. Not only is this approach tantamount to two stage sentencing and incompatible with the instinctive synthesis approach, but there are also strong public policy reasons why this approach must be eschewed. Canny defence practitioners may hold back one or more mitigating factors for the second hearing. The sentence indication process was never intended to be treated in this way. Beyond placing a ceiling on the overall sentence that can be imposed, it has no relevance to the instinctive synthesis of the sentencing judge. It should be observed that his Honour was well aware of the danger of two stage sentencing in the manner now advanced by the applicant, and astute to avoid it.[21]
[21]Transcript of plea T21.9-15.
This proposed ground of appeal has not been established.
Ground 3 – Aggravating factor of motivation of hatred or prejudice
Applicant’s submissions
The applicant contends that it was not open to the sentencing judge to find that the aggravating factor of the offending being motivated by hatred or prejudice against a group of people with common characteristics was established beyond reasonable doubt, and further that the judge did not make a specific finding that the offending was so motivated. Counsel for the prosecution at the plea hearing conceded that it was entirely likely it was psychosis that caused the applicant’s offending and conceded that this aggravating factor had not been established. The judge accepted the psychiatric evidence and purported to ‘moderate’ his earlier finding that this aggravating factor had been established. However, in light of the unchallenged psychiatric evidence and the prosecution’s concession at the plea hearing, the sentencing discretion miscarried because the judge did not make a finding that this aggravating factor was or was not established.
Respondent’s submissions
The respondent argues that, contrary to the applicant’s written case, the judge did in fact make an express finding pursuant to section 5(2)(daaa) of the Sentencing Act 1991 that the offences against two victims were racially motivated. There was ample evidence for the judge to make this finding, including that the applicant had used vile racial slurs about black people in a 000 call shortly prior to the offending and that he had uttered racial abuse towards one of the victims. It was also relevant that Mr Singh, a man of Indian appearance – with whom the applicant had had no prior interaction – was singled out before the applicant attempted to run him down.
The applicant’s counsel withdrew the concession made at the sentence indication hearing that the offences were racially motivated on the basis of Dr McInerney’s report, which found that the applicant was suffering from both drug intoxication and drug-induced psychosis at the time of the offending. The respondent submits that the judge accordingly was prepared to reduce the weight to be given to this aggravating feature, because the psychiatric evidence gave ‘important context’ to the applicant’s racist motivations. However, the judge also made it clear that the applicant’s drug-induced psychosis and intoxication did not reduce the applicant’s moral culpability for his offending. In this way, just as the applicant’s intoxication and drug-induced psychosis did not reduce the applicant’s moral culpability for his decision to target pedestrians while using a car, it could not also reduce his moral culpability for selecting his victims on the basis of racial prejudice. Finally, any concession made by the prosecutor at the plea hearing did not bind the sentencing judge.
Analysis
I do not accept the applicant’s contention that the judge did not find the applicant’s racial hatred to be a motivating factor. It is clear from the Sentencing reasons that his Honour did make that finding[22] and applied the criminal standard when doing so.[23]
[22]Sentencing reasons, [21], [24]-[29].
[23]Sentencing reasons, [21].
Further I reject the applicant’s contention that it was not open to the sentencing judge to conclude that it was established beyond reasonable doubt that the offending was motivated by hatred or prejudice against a group of people with common characteristics. True it is that the prosecutor on the plea conceded that this aggravating factor had not been established as a consequence of the applicant’s psychosis, but this concession did not bind the judge. I consider that it was open to the judge to be satisfied as he was that the offending was motivated by hatred or prejudice but placed into a more moderate context by Dr McInerney’s findings concerning the applicant’s drug induced psychosis. I conclude this from the following:
(a)Immediately prior to the driving offending the applicant called triple zero falsely complaining of ‘black cunts with guns’.
(b)The applicant pleaded guilty to reckless conduct by driving his vehicle directly at Messrs McLeod and Ampofo. Mr Ampofo was obviously a man of African descent. The applicant screamed ‘vile’ racist abuse at him, including ‘get out of the country you black nigger’.
(c)The applicant then drove from Lonsdale street in the CBD to Hoddle Street Collingwood. He became stationary in a service lane until he saw a security guard of Indian appearance. He then intentionally drove his vehicle directly at his victim, striking him forcefully and intending to cause him injury. The impact was forceful enough to propel the victim onto the bonnet of the vehicle and to cause the windscreen to be smashed.
I consider that the reprehensible racist flavour to the applicant’s conduct cannot simply be airbrushed out of existence by a drug induced psychosis. The judge’s moderation of the s 5(2)(daaa) factor in aggravation was a sensible means of recognising the full context of the offending. The conduct of the applicant, by words and actions, leads inexorably to the conclusion beyond reasonable doubt that he was motivated by hatred towards dark skinned people. That this hatred was fuelled by a drug induced psychosis is likely, and in those circumstances it was just and reasonable to soften the impact of s 5(2)(daaa).
The applicant has not established that leave to appeal ought be granted under this ground.
Ground 4 – Remorse
Applicant’s submissions
The applicant contends that the judge failed to mitigate the applicant’s sentence by reference to remorse. At the plea hearing, the judge seemingly accepted that the applicant – through his pleas of guilty and the letters to the court – had demonstrated genuine remorse. However, the judge made no reference in his sentencing remarks to remorse, suggesting that the sentencing discretion miscarried because the judge did not have regard to a relevant consideration.
Respondent’s submissions
The respondent submits that there was very limited evidence of remorse available to the applicant on the plea, in circumstances where the applicant had run a contested committal hearing and had only decided to plead guilty after a sentence indication. Indeed, the applicant reported to Dr McInerney that he had initially pleaded not guilty as he had no recollection of the events but had changed his plea primarily in order to avoid a greater sentence if found guilty after trial, and that no aspect of his offending was intentional. For these reasons, any weight to be given to the remorse the applicant expressed was to be limited.
The judge, despite not making an express reference to remorse, did have regard to the letters authored by the applicant and his friends as evidence that the applicant had expressed shock at his racially motivated offending. However, given that the applicant had not fully accepted responsibility for the intentional acts constituting his offending, the remorse expressed by the applicant was not deserving of significant weight in the sentencing exercise.
Analysis
The judge was entitled to view critically the applicant’s assertions of remorse. The applicant told his forensic psychiatrist that he initially pleaded not guilty as he had no recollection of events, but accepted his plea due to concerns of a greater sentence if found guilty at trial. It will be recalled that the applicant conducted a contested committal on the basis of identity of the driver.
There was some evidence in a letter tendered on the plea to the effect that the applicant was ashamed and regretful, and he authored a letter to the court to that effect, however 27 days later in a conference with his psychiatrist the applicant denied intentionally striking Mr Singh (contrary to his plea of guilty) and on several occasions told her that no aspect of his offending was intentional.
I agree with counsel for the respondent that it was clear that whilst his Honour did not expressly find remorse he did however consider the two letters referred to above. I also agree that given the applicant’s failure fully to accept responsibility for his intentional acts it was well open to the judge not to accord this aspect significant weight in the sentencing exercise or indeed much weight at all.
In passing I should note that the mere failure by a sentencing judge to mention a sentencing consideration as part of the sentencing mix that he or she has considered, is not prima facie evidence that it has not been considered.[24] The judge’s reasons in this case are comprehensive, conscientious and balanced. Leave to appeal under this ground is refused.
[24]R v Koumis (2008) 18 VR 434, 440 [64]; [2008] VSCA 84; Bleakley v The King [2024] VSCA 88, [33]–[34]; Pihlgren v The King; Stephens v The King [2024] VSCA 47, [57].
Conclusion
Leave to appeal will be refused.
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